Pennumbra Debate on Targeted Killing Concludes

by Kevin Jon Heller

Just a quick update to point out that Pennumbra, the University of Pennsylvania Law Review’s online companion, has published the fourth and final installment of my debate with John Dehn on the targeted killing of Al-Aulaqi. You can find the entire debate, including my just-published Closing Argument, here.

My thanks to Pennumbra for inviting me to participate, and to John for being such a willing and intelligent interlocutor.

3 Responses

Thanks again to PENNumbra. And thanks again, Kevin. Your closing argument was very well done, and well-taken. As I stated in the debate and have stated numerous times here, I have no vested interest in supporting U.S. policy or practice as good or bad policy. I do have academic freedom to assert my own objective views on the law in relation to these matters, and did so in the debate. Your assertion that I sought or “wanted” a particular result was unwarranted.

In a short rebuttal to your last submission, neither the Tadi case or others you cite, nor relevant ICJ judgments frequently cited by Mary Ellen and others, are a source of international law. Although you and others opposed to U.S. policy and pactice like to cite them, and they are certainly evidence of the law, they are not a source of international law. I do not here express an opinion about the extent to which they might reflect current customary international law. They are, in my view, inconsistent in certain respects with a great bit of past and present state practice, as indicated in the U.S. Supreme Court cases I cited (and many others that PENNumbra’s abbreviated format would not permit me to cite) and by a great bit of world history.

As we have discussed here before, I have no vested interest in supporting the U.S. government’s argument, but merely in showing that it is not as frivolous as you continue to claim. You frequently assert that no non-American IHL scholar takes such a broad view of the applicability of IHL, but I know several knowledgeable and respected European scholars who are closer to the U.S. position or understanding on these matters than you are aware would care to admit.

Finally, I have twice asked, once here and once in the PENNumbra debate, that you more clearly explain your position regarding a Taliban or al Qaeda attack on U.S. military targets outside of Pakistan or the U.S. You have never clearly (or at least not specifically and thoroughly) responded to that request. I would really like your thoughts.

In the PENNumbra debate, your (seemingly refined from the past) position is that any targeting must be of a group or individuals “sufficiently associated with” the “specific” armed conflicts in Pakistan and Afghanistan. May these non-state parties to an armed conflict lawfully target U.S. military soldiers, equipment or installations, such as the Manas Airbase? May they target U.S. command or training bases in the U.S.? What about the soldiers or bases of the armed forces fighting as part of the ISAF? What do you see as the limits, if any, of a non-state actor’s ability to attack a state’s armed forces (to an armed conflict)? If they are different from a state’s ability to target, why? Is it the formality of the association of those forces with those actively fighting in a conflict, or is the function that they perform related to that conflict?

Just one point on targeting by non-state actors. If we assume the conflict is a NIAC (a point on which I think Jordan disagrees), then the non-state actors never get a lawful right to target government forces. In other words, Afghan Army, US or ISAF forces are not a lawful target for non-state actors regardless of whether those forces are on patrol in Afghanistan, at a base in Manas, or on home soil overseas.

3.04.2011
at 8:31 am EST Ian Henderson

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